A critical aspect of every criminal charge, from driving offences to sexual misconduct, is the evidence stacked against the accused. In a court, evidence is used to establish the facts of the case. Due to its critical role in criminal trials, all evidence presented in court must be in compliance with specific rules.
A person convicted of a serious crime based on evidence that does not follow proper evidentiary rules may be acquitted. This article considers R v SS, a recent decision of the Ontario Court of Appeal where the accused successfully appealed a conviction of sexual assault and sexual interference because the evidence against him should not have been used at trial.
A key piece of evidence at trial was a videotaped statement made to police by the complainant, who was the accused’s niece. At the time, the accused was living with his sister and the complainant. The complainant, who was between six and eight years old, told a Children’s Aid Society worker that the accused had been sexually inappropriate with her and had shown her a pornographic movie.
The Children’s Aid worker took the complainant to the police station. In a video interview conducted by police, she described the alleged conduct in largely the same way as she had to the Children’s Aid worker previously but did not mention any pornographic movies. The complainant was then placed in foster care as a result of the incident but was returned to her mother, the accused’s sister, a year and a half later.
Under a promise to tell the truth at the preliminary inquiry, the complainant viewed the video statement and testified that she did not remember the interview or the events. She later told a psychologist that she had not forgotten but that she did not want to go to trial. She was afraid that she would be taken away from her mother if she made another statement.
At the trial, the psychologist opined that forcing her to testify would be traumatizing. The psychologist otherwise felt that the police interview met proper protocol and that the interviewer’s suggestions did not contaminate the complainant’s statement.
As a general rule of evidence, statements made outside of court cannot be used as evidence if the person making the statement cannot be cross-examined. This type of evidence is called hearsay, and it can include statements made to police.
If a statement is being used to convict a person of a crime, cross-examination is essential so that it can be tested for accuracy. Like a game of “telephone,” hearsay evidence comes with the risk of misinterpretation and issues with memory or sincerity. Thus, when it comes to hearsay, the rules of evidence require the court attendance of a person who has made the statement to help ensure fairness.
Despite the risks of hearsay evidence, some exceptions exist. Out-of-court statements that are later adopted by a witness testifying in court are not considered hearsay. Otherwise, if the witness denies or does not remember making the statement, it is hearsay and should generally not be admitted as evidence.
In other cases, it may be necessary to admit hearsay evidence when the witness is unavailable. For instance, if the witness has passed away or if the witness is a child and is unable to testify. In addition to being necessary, the statement must also be sufficiently reliable to be admitted in court. In other words, it must have been made in circumstances where it can be considered truthful and accurate, like in a setting where it was recorded or where the witness has a clear mental state.
The trial judge found that the complainant’s videotaped statement to the police met the hearsay exception of being necessary and reliable and admitted it into evidence. He held that the inability to cross-examine the complainant was of limited relevance and relied on the psychologist’s view that the police officer’s interview followed protocol. The trial judge further found that the complainant had no apparent motive to fabricate the allegations made in the out-of-court statement. As a result, the statement was found to be both necessary and reliable, qualifying as an exception to the general rule against hearsay. The accused was convicted at trial.
The conviction was overturned on appeal because it was not sufficiently reliable to be an exception to the rule on hearsay evidence. The majority of judges at the Ontario Court of Appeal disagreed with the approach taken by the trial judge. In particular, the trial judge did not consider the dangers that would result from admitting the statement without any opportunity for cross-examination.
The appellate judges pointed to how the reliability of a child’s perception of the events can be impacted by the things they had previously seen or heard. There are some things, the judges acknowledged, that proper protocol cannot prepare for. For example, the Children’s Aid worker claimed that the complainant described viewing a pornographic movie, and her mother said her friends had told her about sex. Such information could be influential to a child’s perception or description of events that occurred would be subjected to cross-examination.
The second problem with the reliability of the complainant’s statement was her sincerity. The complainant had gone back on the statement she made to police at the preliminary inquiry and subsequently admitted to lying while under a promise to tell the truth. Without an ability to cross-examine, the appellate judges held that there was no other way to test the sincerity of the out-of-court statement.
The appellate judges found that the trial judge ignored evidence when deciding that the complainant had no motive to fabricate the allegations. The complainant told the Children’s Aid worker that her uncle and her mother fought often. She told a number of other people that she did not like her uncle and did not want to live with him. The court held that it is possible that the complainant fabricated the story to have her uncle taken out of the home. Therefore, the statement was not sufficiently reliable and did not meet the exception to be admitted at trial.
In summarizing the reasons, the Ontario Court of Appeal wrote:
There was evidence that the complainant’s perception could have been influenced by what she heard from other children and from watching a pornographic movie. Further, there was evidence that could be seen to support a motive to lie. Finally, the complainant had made inconsistent statements about whether she remembered what had happened to her and whether she had told the truth when testifying on a promise to tell the truth at the preliminary inquiry.
As a result of the finding that the exception to the rule against hearsay evidence had not been met, the complainant’s video statement was deemed inadmissible or unusable in court, and the appeal was successful. As the finding of guilt significantly relied on the statement’s admission, the court set aside the conviction and entered an acquittal.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Skilled Representation against Sexual Offence Charges
Barrison Law understands the complexity of the rules of evidence and the serious legal consequences and social stigma that can arise when evidence is handled inappropriately. Our team of criminal defence lawyers is experienced in defending clients against charges of sexual offences involving children, child pornography and sexual assault, including historical sexual assault. We help accused individuals at all stages of the criminal justice process, from bail hearings to trials.
Our office is conveniently located just steps from the Durham Consolidated Courthouse. We accept cases on private retainer and Legal Aid and offer 24-hour phone service. To schedule a confidential consultation on your criminal law matter, call us at 905-404-1947 or reach out online.